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Another Philippine Constitutional Question -- Delegation of Legislative Power to the President Author(s): Edward B. Whitney Source: Columbia Law Review, Vol. 1, No. 1 (Jan., 1901), pp. 33-49 Published by: Columbia Law Review Association, Inc.

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A PHILIPPINE

CONSTITUTIONAL QUESTION.

33

ANOTHER

PHILIPPINE

 

CONSTITUTIONAL

QUESTION-DELEGATION

 

OF

LEGISLA-

 

TIVE

POWER

TO

THE

PRESIDENT.

 

THE

Philippine

Islands became

the

property

of

the

United

States on April

I I, I899, but Congress

has as yet

passed no laws for their government,

or

for the

rights

protection

or regulation

of the personal

or property

of their in-

habitants.' They have been governed by the President in

monarchical form.

He

has not only executed

the

existing

laws of the islands,

but has legislated

also; and without

au-

thority from Congress

he has sent there

a

legislative

body

consisting of five Commissioners, who discuss and pass

bills, and report to him through

the Secretary

of War.

 

Whatever

validity

his legislative

acts

may have

is

de-

rived

from

the

fact

of an

insurrection

throughout

the

greater

portion

of the

islands,

which

was

already

in exist-

ence on April

ii,

1899, and which is still

pending.

Before

that date, when the islands belonged

to

Spain, he

had

the

full power

of

a military

conqueror;

and

a

military

con-

queror in foreign

territory,

even under our form of govern-

ment, is not obliged

to

respect

the

theoretical

division

of

responsibility between legislative, executive

and judicial

powers. The President, as Commander-in-Chief, may even

go to the extent of providing

a complete

new code of laws,

regulating

the personal

and

relations

of

his

tem-

porary subjects, as

well

as

property their governmental

system.2

Whether

he has

right has been transferred

had the

to

the territory

go

to

become domestic, is a matter of doubt;

to this full extent

since

us

by treaty, but even in domestic

and

has

territory, during the pendency of an armed insurrection

there, he may exercise

many of

the

powers

of a military

conqueror, legislating

at least

so far

as to set up a temporary

1 The only legislation

other

than for our

army and navy is a very small

appropriation

for

postal

service

(31

Stat., 252).

2Leitensdorfer

vs.

Webb,

20

How.,

176, 178; Cross

vs. Harrison,

I6

How.,

164, I90.

  • 34 COLUMBIA LA W REVIEW.

government

of martial

law, ignoring

many constitutional

rights, and maintaining of his own contrivance.'

a court system

and taxation system

We have received

information,

however,

that

all resist-

ance to our forces

in the islands

would

cease on November

7, I9oo.

While

the exact date seems

not to

have

been

ob-

served,

we nevertheless

hope for a speedy

return of peace,

when

martial

law

and

military

despotism

shall

end;

yet

Congress has so far made no provision of the islands.

for

the

subsequent

government Such a provision

was

proposed

at

the

last

session

of

Congress by Senator Spooner of Wisconsin. His proposi-

tion was understood

to have

the

approval

tration, and is commonly

was introduced

by

him on

known

as

January

the

I ,

of the adminis- Spooner Bill. It was

I900,

reported

with approval

by the Committee

on the Philippine

Islands,

and became the regular

order of business

in

the

Senate

on

April 4.

It remained

the regular

order thereafter,

but was

laid aside on special

motion almost every

day, and,

while a

few speeches

were made about it, the session ended

on June

7 without

any action.

On

December

4, the

first working

of the next

and

now pending

session,

it was

displaced

day to make way

for a subsidy

bill, and

is

no longer

the "un-

finished

business

"; but

it

is still

the only scheme of govern-

ment for the Philippines

which has had any serious backing

in Congress. The law proposed

by Senator

Spooner

was

to

go

into

effect when

the

insurrection

" shall

have

been

completely

suppressed."

It

was to

remain

in operation

"until

other-

wise provided

by Congress,'" in other

words, for as long

as

any other statute.

It

delegated

to

the

President

and his

appointees

the entire legislative

and judicial

power,

so far

as " necessary to govern " the islands. The islands were not

through a scheme of legislation

devised

by

to be governed Congress, as is

the case with

New

Mexico,

Arizona,

Okla-

homa, Alaska, Hawaii and Porto Rico, but

they were

to

be

governed like a British Crown Colony--in

other

words,

like a conquered

country

will

at

in military occupation.

The question

once

occur

whether

this monarch-

1Texas

vs. White,

7 Wall.,

700,

730;

The

Grapeshot,

9

Wall.,

I29;

Mechanics'

Bank vs. Union

Bank, 22 Wall.,

276.

A PHILIPPINE

CONSTITUTIONAL QUESTION.

35

ical form of government is to be altogether unhampered by constitutional restrictions-whether the Filipinos are to be

unprotected

by the

Bill of Rights,

by the provision

for uni-

formity

of taxation,

and by the other guaranties

of the Con-

stitution.

This

I do

not

intend

here

to

discuss.'

If these

constitutional

guaranties

operate

in the

Philippine

Islands,

and

are

available

to

the

Filipinos,

Congress

is subject

to

them in all its legislation.

It cannot

delegate

to

the

Presi-

dent any greater

or

more

unrestricted

legislative

powers

than

it possesses

itself.

The

President

therefore

would

be

equally bound.

The question

which I propose to discuss in this article

is whether

Congress

has authority

to delegate its legislative

powers

to the President,

and cast

upon

him

its

legislative

responsibilities;

a question

which

has been under discussion

past, although

never before

our late war, ex-

cept perhaps in one very temporary

emergency,

for a century

has it been

even seriously proposed ing jurisdiction.

to confer upon

him such a sweep-

I do

not,

advisable,

if

however,

intend

constitutional.

the arguments

to

On

of

argue

that it would

be in-

the

the

contrary,

most complete

that

delega-

I think

in favor even

tion

of

legislative

power

are so weighty

that they should

receive respectful

consideration.

They may be stated under

three heads.

First,

colonial

because

the

precedents are

precedents

in its

favor.

We

have

no

that

are of

any great

a settled

and

value,

popu-

of our own

we have never before annexed

lous country

of

alien

tongue

and

traditions.

A

most

ef-

fective

argument

in favor

of

our

ability

to govern

such

a

country

with mutual

satisfaction

and

the

approval

of

the

  • 1 The

legislative,

executive and

judicial precedents

are collected

writer,

and the ablest discussions referred

19oo,"

to,

Yale Law

in an article on " The

Journal,

May,

I900.

Rico Tariffs of 1899 and

the

by

Porto

Since

then there has been a decision

vs. United

States,

I03 Fed.

cisions,

of decisions by the

vs.

Republic

of

Hawaii,

by

Judge Townsend of Connecticut (Goetze

now,

with certain

unreported There have been a number

de-

points (Peacock

55;

Rep., 72),

before the Supreme Court for review.

Supreme

12

Court of Hawaii upon these

Hawaii, 27;

Republic

vs. Edwards, Id.,

Honomu Sugar Co. vs.

9,

I90o; Territory

subject

of

whole

and

Policy

Sayewiz,

occupation

Id.,

96;

ex 5arte

Edwards,

decided

day).

Oct.

The

Law

of Hawaii vs. Marshall, decided the same

by

C. F.

Randolph

press.

now in

is discussed

Annexation,"

in his work on " The

by

Some analogous

questions arising

the

out of our anomalous

of Cuba are now under advisement

Supreme Court in the case of Neely vs. Henkel.

  • 36 COLUMBIA LA W REVIEW.

civilized world has been the success

of

Great

Britain

in

doing this same thing.

It is therefore in order to examine

the method

which

Great

Britain uses under similar circum-

stances ;

and if we find that method to be one permitted

by

our Constitution,

the burden of proof may be considered

as

upon those

who urge that it be disregarded,

and that some

novel and untried system

be

substituted.

Parliament

rec-

ognizes

that home affairs deserve

its first attention,

and are

varied enough to occupy

its

time, and

it

does

not attempt

to provide

the necessary

legislation

for the British colonies

or dependencies.

For

those

which- have

attained

such

a

position

that they

are entitled

to govern themselves,

Parlia-

ment provides an enabling

act which

is

practically

a con-

stitution, and thereafter interferes no longer.

Until

a

has reached

the

of self-government-so

long

colony as it is in the

not enacted

position of the by Parliament,

stage

Philippines-its

but

by the

Crown

legislation

in

Council.

is

A new colony acquired by conquest or cession

comes

as

a

matter of course

under

the

jurisdiction

of

the

Crown

in

Council,

although

the Crown

cannot

make

laws " contrary

to the

fundamental

principles"

of

English

law,

or, as

we

should

say, its legislation

must be constitutional.

Second,

it

is

a matter

of

yield

doubt

whether

the best results

our legislative

machinery

is such

as to

in the present

situation.

The problems presented are very,delicate, very

difficult

and

very

complex.

The

amount

of legislation

which

will

be required

by

these

numerous

islands with

their varied

population

and

civilization

is probably great.

It

should

be

drafted

by

persons

who

have

familiarized

themselves

with all of the conditions

on

the

spot-persons

 

familiar

with

the

language,

history,

customs,

traditions,

prejudices

and manners of both Spaniard

and Malay.

Even

 

were these conditions fulfilled, missteps must be expected- missteps which it will be to the interest of all parties quickly

to retrace.

Congress can pay but a small fraction of its attention

is

not

in session all

the time,

and it

to trans-oceanic

difficulties.

But

few persons

can be possessed

of

the fund

of information necessary

for proper

legislation,

and those

persons

as a basis easily be

cannot

brought

into

contact

1 See Anson's

Law of the Constitution,

2d

ed.,

vol.

ii., p.

264,

ef seq.

 

A

PHILIPPINE

CONSTITUTIONAL

QUESTION.

37

with the working committees at Washington. However

important

it

may be

to

push

through

rapidly

some

piece

of legislation,

it

will

be

antagonized

with

every

kind

of

domestic

question,

as well

as with

the affairs of Porto

Rico,

Hawaii

and

Nicaragua,

not

to

speak

of the oppressed

of

other countries

who

may

receive

legislative

sympathy.

Deadlocks

must

unusual

situation,

thus

when

be

the

expected,

President

even

present has a working ma-

in

the

jority

of supporters

in both

branches

of Congress.

It

is

that

this

situation

will

terminate on

March

quite possible and that

3d, I903,

we

may enter

another period of normal

legislative

deadlock, like

that which

lasted with

in-

terruption from

1875 to I897.

If the Spooner

slight bill be passed,

it will

be within

the power of the present and each succeed-

ing President

to

keep a commission

of trained

experts

at

Manila, who may continue

to legislate

for the benefit

of the

Philippine

Islands until the

inhabitants

of those islands are

themselves

prepared

to

take

up the

work, and

then depute

to

a native

or partly

native

assembly

such

portions

of

he

legislative

power as

may be

best, subject,

of course,

to the

power of Congress

to step

in

and

establish

a permanent

territorial government in the islands.

 

Third,

if Congress,

deeming

it inadvisable

at present

to

grant legislative

autonomy

to

the

islands, attempts

to

do

what

Parliament

has

never attempted

to do, namely, pro-

vide

the

necessary

legislation

 

itself, then we

must

be

the

sufferers,

for

the

proper

discharge

of

the

duties

thus

assumed

will take up months

of every

we are

congressional

ses-

sion, and measures

in which

more immediately

interested

must

stand

aside, just

as

at

the

last

session

of

Congress

the Spooner

bill,

although

it

came

to nothing,

crowded

out the

Nicaragua

 

Canal

bill and other measures

of public interest.

There

is certainly

considerable

force in

the contention

that

it would

be better

for us,

as well

as for

the Filipinos,

if

President

McKinley

until

I905,

and

his

successor thereafter, whoever

and

of whatever

party

he

may be, can

have the sole power

and sole

responsibility

of

legislating

for these islands.

 

But

can

this

power

and

this responsibility

be

placed

upon them?

Our government

is divided

into three

branches,

execu-

  • 38 COL UMBIA

LA W RE

VIE W.

 

tive, legislative

and judicial.

Its theory

is that each branch

shall perform

its own

functions,

and

not delegate

them to

the other.

The maxim that the Legislature

cannot delegate

the

power who has treated

to make laws

is as old

it more fully

as Locke.1

Judge

Cooley

than any other text writer

of

authority,

says:

"One

of

the

settled

maxims

in constitu-

tional

law

is that the power

conferred

to make laws cannot

be delegated

by

upon the Legislature that department to

any other body or authority.

Where

the sovereign

power

of the State

has located

the authority,

there it must remain,

and by the constitutional

agency

alone

the

laws

must

be

made until the constitution

itself

is

changed.

The

power

to

whose

judgment,

wisdom

and

patriotism

this

high pre-

rogative

has

been

intrusted

cannot

relieve

itself

of

the

responsibility

by choosing

other

agencies

upon which

the

power

shall

be devolved,

nor

can

it

substitute

the

judg-

ment, wisdom

and patriotism

of any other

body for

thoze

to

which

alone

the

people

have seen

fit

to

confide

tnis

sovereign

trust."2

Supreme maxim from an early date, and it received

The

United

States

Court has

recognized

the

the endorsement

of

all

the

judges

in

Field

vs. Clark,

the

leading

case

on

this subject.3

Justice

Harlan said:

" That Congress

cannot

delegate

legislative

power

to the President

is

a

principle

universally

recognized

as vital

to

the integrity

and

main-

tenance of the system

of

government

ordained

by the

Con-

stitution."4

said:

"That

no part

of

this

legislative

Justice Lamar power can be

delegated

by

Congress

to

any

other department of the government,

executive

or judicial,

in constitutional

law, and

is universally

recog-

is an axiom nized

as a principle

essential

to

the

integrity

and mainte-

nance of the system of government ordained by the Consti-

tution.

The

legislative

power

must

remain

in

the organ

where it is lodged

by that instrument."

5

 

An

exception

may

be

claimed

to

exist

here, because

1

" The

 

(Locke on

Civil

2

4

I43

U.

S.,

Id., p. 692.

5d., p. 697.

legislative neither must nor can transfer the

or place it

power of making have."
power of making
have."

laws to anybody else,

anywhere but where the people

Government,

Sec. I42.)

Cooley's Constitutional Limitations, 6th ed., p. 137.

649.

A PHILIPPINE CONSTITUTIONAL QUESTION. 39

Congress

can

concededly

delegate

to

the

President,

to

Cabinet

" rules

officers or to

the courts

the

and regulations,"

according

power to our current

to

make

mere

phrase-

ology;

while'the right

to legislate

for

the

Territories

is

commonly ing power to Congress

attributed

to the constitutional

to

" make

provision

grant-

all needful

rules and regu-

lations respecting the territory or other property belonging

to the United States."

1

There

has

always

been

doubt,

however,

whether

this

provision

has

any

application

to

territory acquired

since

I789.2

And the words "rules

and

regulations" have always been treated in the practical con-

 

of "statutes."

struction of the Constitution as the equivalent

Provisions for the Territories have commonly been inserted

in statutes

mainly intended

for the

States.

Moreover,

this

special

power

is expressly

confided

to Congress

as fully

as

is

the

general

power

can be delegated

to

of

legislation, the President,

other can be delegated

so

that

it would

if

one power seem that the

to him also.

But

while

the

United

States

Supreme

Court

has

at

various

occasions

recognized

the

general

principle

that

legislative

power

cannot

be

delegated,3

it

has

never yet

found it to be applicable

fore

it

for

decision;

to any case that actually and while the

principle

came be-

as a general

principle

has been generally

recognized

in the State courts,

the actual number

of statutes

which

have been by them

de-

clared unconstitutional

is but small,

and even of these

deci-

sions a majority

have

either

been

overruled,

or generally

disapproved,

upon the point decided.

In fact, the

two cases

which Judge

Cooley

in

his

shorter

work

refers

to

as the

leading

applications

of

this

constitutional

principle,4

have

 

1

Constitution, Art. IV, Section 3.

2

American Insurance Co.

vs. Canter,

I Pet.,

at

pp, 542-3, 546;

United

States vs. Gratiot, 14 Pet., at p. 537;

at

p.

132.

National Bank vs.

is in

Yankton, IOI U. S.,

19

The fullest judicial treatment

Dred Scott vs. Sandford,

How., at pp. 432-447,

500-5I 5, 604-6

5.

 

3

Wayman

vs. Southard,

io Wheat.,

I, 42,

per

Marshall,

C. J.;

Bank of

United

States vs.

Halstead,

Id.

5,

6i

;

In

re

Rahrer,

I40

U.

S.,

545, 560;

Field vs. Clark, supira.

 

4

Cooley

on the Constitution,

3d ed.,

p.

I I

, citing

Barto

vs. Himrod,

8

and

N.Y., 483

Rice

(declaring a referendum to the

vs. Foster,

4

Harringt.,

479

people

of the entire State

local

option

invalid),

laws,

and

(prohibiting

similar instances

of a referendum

to the

people

of

a county

or municipality).

The other case cited is a mere dictum,

being denied.

the

application

of

the

principle

  • 40 COLUMBIA LA W REVIEW.

both met with a great amount of disapproval

by subsequent

courts and writers, including

Judge

Cooley

himself.'

The

decisions

which

were the

original

supports of the doctrine

have thus been knocked

from under

it.

New

applications

of

the

principle

are

still

occasionally

made

by

the

State

courts, however.2

 

upon legislative authority, Chief Justice

In

one

of

the

earlier

cases

the power to delegate

Marshall said that

' the

precise boundary of this power is a subject of delicate

and

difficult inquiry,"3 and subsequent

adjudications,

and ex-

while

proving

the

delicacy

and

difficulty

of the inquiry,

tending to some extent

what was at that time supposed

to

be the probable boundary of the power, have failed to locate

the boundary even approximately.

The question has several

elaborately

argued before

States in cases of impor-

times since Field vs. Clark been

the Supreme Court of the United

tance, but the court has each time found some

other point

upon which the decision might turn.4

 
 

Statutes like that considered

in

Field

vs. Clark,

and

statutes submitted

to

the

referendum, are

enacted

by the

legislature

in complete

form, and await only the executive

decision

or

the popular

vote

to

go

into

operation.

But

statutes which delegate full legislative power--power

to

 

also familiar.

draft the law as well as to give it operation-are

 

1 See

Cooley's

Constitutional

Limitations,